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Defense attorneys say prosecutors are still pushing to detain people who are awaiting trial, even those accused of nonviolent crimes, amid the coronavirus pandemic.
This story has been updated.
At the Metropolitan Correctional Center downtown, federal inmates awaiting their trials sometimes sleep more than 25 people in a room, with minimal space between bunks. Federal detainees there and in two other facilities in San Diego County say those who have severe coughs and fevers receive delayed or no medical follow-up.
Attorneys are raising the alarm that federal prosecutors are still pushing to detain people who are awaiting trial, even those accused of nonviolent crimes, amid the coronavirus pandemic.
One prosecutor, Michelle Pettit, a Trump judicial nominee for a U.S. district court seat, countered that people would actually be safer from the coronavirus in detention facilities, according to court documents.
The Federal Defenders of San Diego Inc., whose attorneys manage the bulk of federal pro-bono criminal defense in San Diego, sent a letter to U.S. Sen. Kamala Harris urging better protections for pretrial detainees.
“Most of our clients are charged with non-violent crimes such as immigration status offenses,” wrote Kathryn Nester, the executive director of the San Diego Federal Defenders, in the letter to Harris. “Although the United States Attorney’s Office (USAO) for the Southern District of California has reduced new prosecutions and offered favorable resolutions in many cases, it has continued to ignore the risk of COVID-19 when making crucial prosecutorial decisions — most notably on whether to agree to pre-trial release for detained people.”
The Federal Defenders also sent questionnaires to detained clients asking about the conditions in which they’re being held. Their responses, which were filed in a declaration, describe living conditions where social distancing is nearly impossible and hygienic measures are inadequate.
“As cases of COVID-19 begin to spread throughout jails in Southern California, we are concerned that the USAO is not recognizing a ticking time bomb,” Nester wrote. “Phone calls and emails with our clients indicate that they are concerned about unsanitary and crowded conditions.”
The letter cited New York’s Rikers Island jail complex, where coronavirus cases have spread rapidly among inmates from one case to 200 in 12 days.
Harris’ office confirmed receipt of the letter, and wrote in a statement that “the allegations raised are deeply concerning. Prosecutors must make responsible charging decisions that eliminate unnecessary or excessive incarceration, especially during the coronavirus crisis. In the midst of this pandemic, the Justice Department must address this matter urgently and re-evaluate how it is enforcing and detaining individuals.”
There are three facilities in San Diego County that house federal detainees: the Metropolitan Correctional Center, the Western Region Detention Facility run by private prison company the GEO Group and the Otay Mesa Detention Center, which is also run privately by CoreCivic.
The Western Region Detention Facility has no in-unit hand sanitizer and shared showers aren’t sanitized between uses, according to the declaration. At MCC, inmates are sleeping with more than 25 people in a room, with minimal space between bunks. Inmates at all three of the facilities said some detainees are exhibiting coronavirus-like symptoms, like coughing and fevers, but have received delayed or no medical follow-up.
On Monday, CoreCivic learned that an employee at the Otay Mesa Detention Center tested positive for coronavirus.
“Efforts are currently underway to notify other employees or contractors who may have been in contact with the individual who tested positive,” said Amanda Gilchrist, a spokeswoman for CoreCivic, in a statement. “The employee who tested positive had no known physical contact with the detainee population at this time. However, a full review is underway and we’re working closely with our partners at Immigration and Customs Enforcement (ICE) and the U.S. Marshals Service on those efforts.”
Gilchrist said CoreCivic has been having medical staff participate in the intake process to identify those who are deemed a high risk of being infected with or contracting COVID-19, isolating detainees who are deemed high risk as needed and working with local and state health departments to conduct appropriate testing.
“All of our facilities are actively promoting the following three health habits for inmates, detainees and residents, as well as staff: regular hand hygiene, respiratory etiquette (coughing or sneezing into a sleeve or tissue), and avoiding touching one’s face,” Gilchrist said. “We also encourage the practice of social distancing for all individuals within our facilities.”
The U.S. Marshal Service did not respond to a request for comment. In a statement, U.S. Attorney Robert Brewer called Nester’s assertions “grossly misleading.”
“The court determines whether to order a defendant detained pending trial or to set conditions of release in each case and whether to modify the conditions of release while a case is pending,” Brewer said. “The [U.S. attorney’s office] and defense counsel make recommendations, but the decision is up to the court.”
Brewer said, for example, his office is still regularly prosecuting individuals who are caught smuggling methamphetamine and other controlled substances into the United States, but prosecutors have elected to issue Notices to Appear to many of those individuals instead of taking them into custody.
“Ms. Nester’s letter also disregards the good faith efforts the [U.S. attorney’s office] has undertaken with Federal Defenders and CJA counsel to identify cases in which a time served sentence is appropriate and set those cases for immediate sentencing hearings,” Brewer said. “When phase one of this project is completed, we estimate over 100 defendants currently in custody will be sentenced to time served and released from custody. There is no mention of our joint undertaking with Federal Defenders in Ms. Nester’s letter.”
The U.S. federal court in San Diego has been limited to only essential business after a March 17 order from Chief Judge Larry A. Burns. The Union-Tribune reported that the curtailed court operations have resulted in a severe drop in cases filed.
The GEO Group, which runs the Western Regional Detention Facility downtown, pushed back against allegations that detainees are being put at risk.
“We strongly reject these unfounded allegations, which we believe are being instigated by outside groups with political agendas,” said a GEO spokesperson in a statement responding to the concerns raised by the Federal Defenders.
Federal prosecutors have even refused to agree to bond in situations where detainees are particularly vulnerable to the virus’ impacts, Nester wrote in the letter. She cited one example, where the U.S. attorney’s office opposed bond for a 64-year-old Vietnam veteran, who was charged with a nonviolent offense and suffers from post-traumatic stress disorder, skin cancer stemming from Agent Orange exposure and chronic heart problems. The man has been quarantined – with eight other men.
Then there are other obstacles, even when all parties agree that a detainee should be released.
In one recent bond briefing to the Ninth U.S. Circuit Court of Appeals, a magistrate judge granted a motion for the release of a man named Ronald Rimmel after the coronavirus pandemic began to spread across California. Rimmel is 73, with a bad hip and concussion, according to court documents, placing him “squarely in the group of people most at risk of dying from COVID-19.”
Rimmel is a U.S. citizen who has been living in Mexico, where housing is more affordable. In February, he was arrested while crossing the border because U.S. Customs and Border Protection discovered methamphetamine in the gas tank of his car.
There was one condition of release, though: that he stay with a family member. Rimmel, who had no one to stay with, remains in custody and is asking that he be allowed to be released to his home in Mexico or to a halfway home.
Pettit, a supervising prosecutor who is one of President Donald Trump’s judicial nominees, contacted Rimmel’s defense counsel and said she believe Rimmel would be safer in jail, according to the briefing.
“She further indicated that while she understood that Mr. Rimmel’s age made him a high-risk individual, that she believed he was currently safer in jail than he would be if released,” the brief reads. “She indicated that because there are no cases in the facilities, given the current controls of individuals allowed into the facilities, the risk of him contracting the virus was lower if he stayed in custody.”
In addition to endangering public health, Nester writes in the letter, prosecutors’ refusal to take stronger action to protect detainees also threatens due process by having “an enormously coercive effect on those deciding whether to plead guilty.” Many people detained before their trial due to the prosecutor’s bail recommendations must choose between fighting their cases and risking exposure to COVID-19 in jail, or pleading guilty with the hope of immediate release. All motion hearings and trial dates have been postponed by at least a month, and it remains uncertain when jury trials will begin again, Nester writes.
“Understandably, many will plead guilty to avoid infection,” she says in the letter.
Nester urged Harris to help adopt measures that would protect detainees. Absent the risk of injury to others or other extraordinary circumstances, the U.S. attorney’s office should halt pretrial detention of new nonviolent arrestees, agree to release for pretrial detainees without setting a bond and reconsider charging, sentencing and dismissal decisions in light of the public health risks associated with the continued detention of nonviolent offenders.
Update: This story has been updated to include information provided by the U.S. attorney’s office after this post initially published.